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Frequently Asked Questions - Zoning in Georgia
1. Where Do I find the Basic Zoning Law in Georgia? OCGA § 36-66-1 Short title. This chapter shall be known and may be cited as "The Zoning Procedures Law." OCGA § 36-66-2 Legislative purpose; local government zoning powers. (a) While recognizing and confirming the authority of local governments to exercise zoning power within their respective territorial boundaries, it is the intention of this chapter to establish as state policy minimum procedures governing the exercise of that power. The purpose of these minimum procedures is to assure that due process is afforded to the general public when local governments regulate the uses of property through the exercise of the zoning power. Nothing in this chapter shall be construed to invalidate any zoning decision made by a local government prior to January 1, 1986, or to require a local government to exercise its zoning power. (b) Consistent with the minimum procedures required by this chapter, local governments may: (1) Provide by ordinance or resolution for such administrative officers, bodies, or agencies as may be expedient for the efficient exercise of their zoning powers; and (2) Provide by ordinance or resolution for procedures and requirements in addition to or supplemental to those required by this chapter. Cases Decided Under this Statute: The procedural requirements of this chapter are mandatory. - County's failure to comply with the notice provisions of § 36-66-4(a) invalidated the subject zoning action. McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988). County's failure to comply with the mandatory language of this chapter in enacting a zoning ordinance rendered the ordinance void. Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991). Appeals. - Without express statutory language, a local government does not have the authority to create direct appeals of rezoning decisions. Walton County v. Scenic Hills Estates, Inc., 261 Ga. 94, 401 S.E.2d 513 (1991). * * * OCGA § 36-66-3 Definitions. As used in this chapter, the term: (1) "Local government" means any county or municipality which exercises zoning power within its territorial boundaries. (2) "Territorial boundaries" means, in the case of counties, the unincorporated areas thereof and any area defined in paragraph (5.5) of Code Section 36-70-2, and, in the case of municipalities, the area lying within the corporate limits thereof except any area defined in paragraph (5.5) of Code Section 36-70-2. (3) "Zoning" means the power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of development and the improvement of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established. (4) "Zoning decision" means final action by a local government which results with: (A) The adoption of a zoning ordinance; (B) The adoption of an amendment to a zoning ordinance which changes the text of the zoning ordinance; (C) The adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another; or (D) The adoption of an amendment to a zoning ordinance by a municipal local government which zones property to be annexed into the municipality. (5) "Zoning ordinance" means an ordinance or resolution of a local government establishing procedures and zones or districts within its respective territorial boundaries which regulate the uses and development standards of property within such zones or districts. The term also includes the zoning map adopted in conjunction with a zoning ordinance which shows the zones and districts and zoning classifications of property therein. [This statute is placed out of numberical sequence] OCGA § 36-66-5 Adoption of hearing policies and procedures and standards for exercise of zoning power. (a) Local governments shall adopt policies and procedures which govern calling and conducting hearings required by Code Section 36-66-4, and printed copies of such policies and procedures shall be available for distribution to the general public. Such policies and procedures shall specify a minimum time period at hearings on proposed zoning decisions for presentation of data, evidence, and opinion by proponents of each zoning decision and an equal minimum time period for presentation by opponents of each proposed zoning decision, such minimum time period to be no less than ten minutes per side. (b) In addition to policies and procedures required by subsection (a) of this Code section, each local government shall adopt standards governing the exercise of the zoning power, and such standards may include any factors which the local government finds relevant in balancing the interest in promoting the public health, safety, morality, or general welfare against the right to the unrestricted use of property. Such standards shall be printed and copies thereof shall be available for distribution to the general public. (c) The policies and procedures required by subsection (a) of this Code section and the adoption of standards required by subsection (b) of this Code section may be included in and adopted as part of the zoning ordinance. Prior to the adoption of any zoning ordinance enacted on or after January 1, 1986, a local government shall conduct a public hearing on a proposed action which may be advertised and held concurrent with the hearing required by subsection (a) of Code Section 36-66-4 for the adoption of a zoning ordinance. The provisions of subsection (a) of Code Section 36-66-4 relating to notices of public hearings for the purposes of that subsection shall also apply to public hearings required by this subsection. Caselaw: "Zoning decision" construed. - Both passage and rescission of a text amendment change the text of the zoning ordinance. Both actions fit squarely within the statutory definition of a "zoning decision." Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). A clause in a lease agreement between a city and its solid waste treatment provider which might require a future amendment to a zoning ordinance did not constitute a zoning decision. Grove v. Sugar Hill Inv. Assocs., 219 Ga. App. 781, 466 S.E.2d 901 (1995). 2. Where Do I find the Local County Zoning Codes in Georgia? The Codes for most of the Metro Atlanta Counties and Cities may be found online at the Municipal Code Corporation, Tallahassee, FL. It may be found at http://www.municode.com If you cannot find it online, a lease one copy should be available in the law library of your local courthouse. Or, check with the Clerk of the Real Estate Record Room in your county. Additional venues that one may be found are the local tax commissioners office, the planning commission and the Board of County Commissioners. OCGA § 36-66-4 Hearings on proposed zoning decisions; notice of hearing; nongovernmental initiated actions; reconsideration of defeated actions; procedure on zoning for property annexed into municipality. (a) A local government taking action resulting in a zoning decision shall provide for a hearing on the proposed action. At least 15 but not more than 45 days prior to the date of the hearing, the local government shall cause to be published within a newspaper of general circulation within the territorial boundaries of the local government a notice of the hearing. The notice shall state the time, place, and purpose of the hearing. (b) If a zoning decision of a local government is for the rezoning of property and the rezoning is initiated by a party other than the local government then: (1) The notice, in addition to the requirements of subsection (a) of this Code section, shall include the location of the property, the present zoning classification of the property, and the proposed zoning classification of the property; and (2) A sign containing information required by local ordinance or resolution shall be placed in a conspicuous location on the property not less than 15 days prior to the date of the hearing. (c) If the zoning decision of a local government is for the rezoning of property and the amendment to the zoning ordinance to accomplish the rezoning is defeated by the local government, then the same property may not again be considered for rezoning until the expiration of at least six months immediately following the defeat of the rezoning by the local government. (d) If the zoning is for property to be annexed into a municipality, then: (1) Such municipal local government may begin the procedures required by this chapter for such zoning at any time on or after the date the notice of the proposed annexation is provided to the governing authority of the county as required under Code Section 36-36-6; (2) The hearing required by subsection (a) of this Code section shall be conducted prior to the annexation of the subject property into the municipality; (3) In addition to the other notice requirements of this Code section, the municipality shall cause to be published within a newspaper of general circulation within the territorial boundaries of the county wherein the property to be annexed is located a notice of the hearing as required under the provisions of subsection (a) or (b), as applicable, of this Code section and shall place a sign on the property when required by subsection (b) of this Code section; and (4) The zoning classification approved by the municipality following the hearing required by this Code section shall become effective on the later of: (A) The date the zoning is approved by the municipality; or (B) The date that the annexation becomes effective pursuant to Code Section 36-36-2. Subsection (b) mandatory for text amendment of general application. - The procedures described in subsection (b) must be followed when passing or rescinding a text amendment of general application. Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). What constitutes "rezoning decision". - A text amendment having general application is not a "rezoning decision" for purposes of the procedures required under subsection (b). Atlanta Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). Notice. - County's failure to comply with the notice provisions of subsection (a) invalidated the subject zoning action. McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988). Applicability to new permitted use. - The procedures described in subsection (b) and § 36-67-5 do not apply to the enactment of a zoning ordinance text amendment that allows a new permitted use. Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). OPINIONS OF THE ATTORNEY GENERAL Reconsideration after tie vote. - A tie vote on consideration of a zoning proposal by a count board was not a "defeat" of the proposal so as to bar its reconsideration within six months. 1996 Op. Att'y Gen. No. U96-16. 4. What Are The Steps of Appeal of a Zoning Issue Through the Court System? There is almost no standard progression of a zoning issue through the lower administrative channels of each county in Georgia, because each county is free to name its intake desk, planning commission, board of appeals, etc. Different names in each County provide for different tracts of review of building and zoning issues. Issues on the grant or denial of a variance begin in the Planning Department of the Public Works Department. Code of DeKalb County § 27-31. Amendments to the Zoning Ordinances start with the Planning Commission. Code of DeKalb County § 27-32 Appeals, states:
The Board of Commissions' ruling on zoning and development issues is considered final. The Georgia Supreme Court has held that even though it is a purely executive body, Commissions rulings in this area are of a quasi-judicial nature. As such, the appeal of an adverse ruling of the full Board is somewhat unique. The appeal is by Writ of Certiorari to the Superior Court of the County. Jackson v. Spaulding County, 265 Ga. 792, 462 S.E.2d 361 (1995). Russell v. City of East Point, 261 Ga. 213, 403 S.E.2d 50 (1991). From an adverse ruling of the Superior Court, the appeal is not as a matter of right. If a constitutional issue is involved (such as an allegation of an impermissible taking or, the litigants are challenging parts of the zoning ordinances as unconstitutional), then they "may," under appropriate circumstances, appeal as a matter of right to the Georgia Supreme Court. All other ordinary zoning appeals are by discretionary appeal to the Georgia Court of Appeals, pursuant to OCGA § 5-6-35. Zoning is almost always a local issue. There is, in almost every single case, no appeal and no legal grounds to appeal to the Untied States Supreme Court. The Zoning Cases that do reach the United States Supreme Court arrive by way of the federal courts and raise one of three (3) issues: unconstitutionality of statute of application of statute, an improper taking, or the apparent conflict between a federal statute and a local zoning code. 5. What Is The New Legal Standard Required to Challenge a Zoning Ordinance? A ruling by the Georgia Supreme Court in DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239, (1997)(Sear, J.), will substantially raise the burden on landowners and developers who desire to challenge county zoning ordinances. The core of the Dobson case is the new standard imposed on one challenging the validity of a county zoning ordinance, that new standard as stated by the Supreme Court is:
6. Can Zoning Be Considered an Unlawful "Taking" of My Property? This is a very complex issue that surfaces again and again in zoning. The general answer is "no." However, zoning must be balanced against the basic rights in the U.S. Constitution and 1983 Georgia Constitution that states that no property shall be taken for public use without just compensation. When compensation is provided for a "taking," the issue becomes one of condemnation and eminent domain. However, what happens if you own industrial property that is worth 10 million dollars and the local zoning officials rezone it to a light office moderate industry standard. You may find your property will now only bring 2 million dollars on the open market. Has there been a "taking" of the other 8 million dollars. Unfortunately, the courts have held there has not been a taking. However, these issues turn very much on the specific facts of each and every case. This issue goes well beyond the scope of this paper. Answers to these questions may be found in research related to the V Amendment and the XIV Amendment to the U.S. Constitution and the I Article of the Georgia Constitution. A good overview of the federal law as applied to issues with regard to "taking" may be found at Bickerstaff Clay Products, Inc. vs. Harris County, GA, ____ F.3rd _____ (11th Cir. 1996)(11th Circuit 94-9215). Also, a major shift in the area of "taking" law occurred with the United States Supreme Court's ruling in Lucas v. South Carolina Costal Council, 505 U.S. 1003, 1014 - 16, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992). 7. What Additional Zoning Requirements affect Metro Areas in Georgia? OCGA § 36-67-1 Applicability of article; "local government" and "governing authority" defined. This article shall apply only to those counties which have a population of 500,000 or more according to the United States decennial census of 1990 or any future such census and to those municipalities wholly or partially located within such counties which have a population of 100,000 or more according to the United States decennial census of 1980 or any future such census. As used in this article, the term "local government" means those counties and municipalities subject to this article; and the term "governing authority" means the governing authority of each such county and municipality. Counties exempt from article. - This article does not apply to Cobb County. Cobb County Bd. of Comm'rs v. Poss, 257 Ga. 393, 359 S.E.2d 900 (1987). OCGA § 36-67-2 Legislative findings. The General Assembly finds that the increasing urbanization of those local governments subject to this article requires that such local governments should use zoning procedures which may not be necessary in other less urbanized areas. The General Assembly finds that the procedures required by this article will help to ensure that governing authorities will make zoning decisions consistently and wisely and in keeping with the long-range requirements of the public health, safety, and welfare. The General Assembly further finds that the procedures required by this article will help to ensure that zoning decisions are made on the basis of a record which will contain matters necessary to the consistent and wise decision of zoning matters in highly urban areas. The General Assembly further finds that the procedures required by this article will help citizens of the affected local governments in presenting and articulating their viewpoints on zoning matters. The General Assembly further finds that the procedures required by this article will help to ensure that court decisions, when courts are required to intervene in zoning matters, will be made on the basis of a record which will contain matters necessary to the consistent and wise judicial decision of such zoning matters. 8. What Required Findings Must be Made Concerning a Zoning Proposal? OCGA § 36-67-3 Zoning proposal review standards. In any local government which has established a planning department or other similar agency charged with the duty of reviewing zoning proposals, such planning department or other agency shall with respect to each zoning proposal investigate and make a recommendation with respect to each of the matters enumerated in this Code section, as well as carrying out any other duties with which the planning department or agency is charged by the local government. The planning department or other agency shall make a written record of its investigation and recommendations, and this record shall be a public record. The matters with which the planning department or agency shall be required to make such investigation and recommendation shall be: (1) Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property; (2) Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property; (3) Whether the property to be affected by the zoning proposal has a reasonable economic use as currently zoned; (4) Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities, or schools; (5) If the local government has an adopted land use plan, whether the zoning proposal is in conformity with the policy and intent of the land use plan; and (6) Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal. [OCGA § 36-67-4 is omitted.] JUDICIAL DECISIONS. Cited in Northridge Community Ass'n v. Fulton County, 257 Ga. 722, 363 S.E.2d 251 (1988); Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). 9. What Is the Zoning Impact Analysis and Proposal and When Must it be Filed? OCGA § 36-67-5 Proposed zoning impact analysis by nongovernmental initiating party. If a zoning proposal is initiated by a party other than the local government, the initiating party shall be required to file a written, documented analysis of the impact of the proposed zoning with respect to each of the matters enumerated in Code Section 36-67-3, as well as any other supporting materials required by the local governing authority. The time at which such analysis is required to be filed shall be specified by each local governing authority, but the required time for filing shall not be less than seven days before any hearing or meeting of the governing authority at which the zoning proposal will be under consideration by the governing authority. Such a zoning proposal and analysis shall be a public record. JUDICIAL DECISIONS. Applicability to amendment permitting new use. - The procedures described in § 36-66-4(b) and this code section do not apply to the enactment of a zoning ordinance text amendment that allows a new permitted use. Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594, 408 S.E.2d 100 (1991). OCGA § 36-67-6 Zoning proposal record and analysis review at hearing or meeting. At any hearing or meeting at which a governing authority has under consideration a zoning proposal, the analysis submitted by the initiating party, if any, shall be reviewed. At any hearing or meeting at which a governing authority has under consideration a zoning proposal, the record prepared by the planning department or other agency, if any, shall be reviewed. At any hearing or meeting at which a governing authority has under consideration a zoning proposal, the record prepared by the planning commission or other group, if any, shall be reviewed. The review of such analysis and records at such hearing or meeting shall consist, as a minimum, of an oral statement of the findings with respect to each matter enumerated in Code Section 36-67-3 or the written presentation of such findings to the members of the governing authority together with a limited supply of copies of such findings to be available at the hearing or meeting and available on request to interested members of the public. Notice: Disclaimer of Attorney Client Relationship by mere use of this website. The mere reading or accessing this website does not create an attorney client relationship. Emailing the firm or using the legal forms posted does not constitute and create an attorney client relationship. If you would like to inquire about possible legal representation, please be aware that we cannot represent you until we know that doing so will not create a conflict of interest for you or our present clients. If you wish to initiate an attorney client relationship, we need the opportunity to conduct a conflict search, review your case and materials and, if appropriate in your situation, complete an engagement letter. Additionally, any information presented on this site is the opinion of the author and does not necessarily reflect the opinions of Wood & Meredith, LLP. These articles posted are not intended to provide specific legal or tax advice, but are intended only to generally familiarize the reader with the subject matter. 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